Michael Hayden Played Right Up to the Edge of Legality—and Then Took a Big Leap Off

Michael Hayden Played Right Up to the Edge of Legality—and Then Took a Big Leap Off

Michael Hayden Played Right Up to the Edge of Legality—and Then Took a Big Leap Off

In his new memoir, the former director of the NSA and the CIA shows how his many failures were followed, one after the next, by promotions.


It’s hard not to like Michael Hayden. He looks like your favorite uncle, and the twinkle in his eyes makes his explanations of complex topics, often filled with irrelevant sports metaphors and analogies, sound believable. “He’s always been a great communicator, he has a way of turning a phrase, he’s very energetic and willing to engage,” Bill Harlow, a former CIA spokesman, told The New York Times in 2014. Thus, Hayden agreed to be the media frontman for his fellow former CIA directors, George Tenet and Porter Goss, allowing them to hide behind their tattered cloaks. “We’re lucky to have him on our team,” Harlow added. “When it comes to TV it’s hard to match him.”

These days, Hayden seems to be everywhere and talking about everything, whether it’s Hillary Clinton’s e-mails (“It’s like that old TV show…Breaking Bad”), to his love of spicy Singapore stir-fried shrimp (“I serve it over grits. It’s true fusion”), to binge-watching Homeland (“It’s always fun, and it’s far enough from reality to be enjoyable and close enough to reality to be authentic”). But most of all he’s talking spying and his newly released memoir, Playing to the Edge: American Intelligence in the Age of Terror, the first book by a former NSA director. It’s an odd paradox. In 2007, after Hayden had moved over to become CIA director, the homes of several NSA employees were raided for allegedly leaking classified information; one of them, Thomas Drake, was arrested and charged with multiple counts of espionage. The case was later dismissed after it was shown that all of the supposedly “secret” information was actually in the public domain, much of it put there by Hayden himself. (I was a member of Drake’s legal team.)

Thus far the reviews of Hayden’s book have been mixed. Writing in The Washington Times, Joseph Golden called the book “inspiring,” and blamed Congress for disavowing programs they had previously approved, and the “reckless media that valued headlines more than protecting sensitive national security measures.” In The New York Times, Mark Bowden listed as his “primary objection to the book” Hayden’s failure to discuss the fallout of his decisions. “His assessment of the more controversial programs he administered seems to ignore what happened after he left office in 2009,” wrote Bowden. While acknowledging that there have not been any 9/11-style attacks, Bowden says, “On the other hand, the excesses of those years have done profound and lasting damage.” Meanwhile, George Packer in The New Yorker was unimpressed, calling the book “self-serving” and “badly written.” He notes, “Hayden is a devout Steelers fan, and his style is jock-bureaucratic—tough talk clotted with insider terminology.”

The Times had originally asked me to write the review of Hayden’s book, but I declined because I am mentioned in it, and therefore thought I might not be viewed as an objective reader. But now that most of the reviews have been printed, I accepted The Nation’s offer to express my thoughts on the book in the form of a subjective article rather than an objective review. My mention in the book is when Hayden points to the time when the agency sought to lock me away in prison. “One of my distant NSA predecessors, Linc Faurer,” he wrote, “wanted to have him arrested over his first opus, The Puzzle Palace, when it hit the streets in 1982.”

The story was this: I had managed to obtain from the Jimmy Carter–era Justice Department what amounted to the agency’s criminal file, which detailed years of illegal eavesdropping. The incoming Reagan administration was demanding I return it. When I refused, they did everything they could to stop publication, including threats of prosecution, an FBI raid at a library I used, and threats of jail time for several of my sources. Much to their dismay, however, the intimidation did not work, the documents were never returned, and the book was published without redactions.

As I was writing my second book on the NSA, Body of Secrets, I was more than a little surprised when, instead of receiving threats, my wife and I were invited to the NSA director’s home for dinner. By then it was 2000 and the director was Michael Hayden. It was an interesting experience, to say the least: in addition to a fine meal with good wine, we were entertained by a three-piece military band in the director’s living room.

As Hayden recalls the event, he thought that, because I appeared impervious to threats, he would try the opposite approach of spinning me in favor of the agency. In Playing to the Edge he writes that he “tried to more productively cultivate Bamford” by “inviting him to dinner and allowing him to have a book signing in NSA’s National Cryptologic Museum.” Alas, neither fear nor favor was successful. “It didn’t work,” he notes. “When the Terrorist Surveillance Program was made public in late 2005, he joined an ACLU lawsuit against NSA.”

* * *

Hayden’s book is one more piece in the puzzle of 9/11 and the years of wars, black sites, renditions, torture, and internal surveillance that followed. At virtually every disastrous twist and turn, Hayden was there, first at the NSA, then in the office of director of national intelligence, and finally at the CIA. In the same way he tried to woo me over wine and music, Playing to the Edge is his attempt to convince the public of his version of events during the presidency of George W. Bush. A man of endless sports metaphors, Hayden spends a great deal of time playing defense before finally going on the offense when recalling how the Obama administration moved into town and sent him packing.

When Hayden arrived at the NSA in March of 1999, the memory of the exhaustive investigations into the agency and the rest of the intelligence community by the Church Committee was still vivid in the minds of many employees. Those fears drove Hayden to play as far from the edge as possible. “Since the ugliness of the Church Commission,” he wrote, “NSA had acted like it had had a permanent one ball–two strike count on it. ‘We don’t take many close pitches,’” he told CIA director George Tenet. Ultimately, it was that overabundance of caution that led to the failure to detect the 9/11 attacks. But just how the NSA missed those attacks is a sensitive topic that Hayden studiously avoids. After all, the major purpose of creating the NSA in the first place was to prevent a repeat of the surprise attack at Pearl Harbor. Now, in America’s greatest intelligence disaster since then, Hayden was the man in charge.

What Hayden neglects to mention in his story is the fact that the agency had been eavesdropping on several of the hijackers from almost the moment the plot began. For years, several former senior NSA officials told me, the agency had “cast iron” 24/7 coverage on a house in Yemen’s capital of Saana, which bin Laden used as his communications and operational center. The phone number—967-1-200-578—was at the top of the NSA’s target list. And it was there, in December 1999, that the 9/11 plot was set in motion when a call came in from bin Laden’s Afghan headquarters ordering the first two hijackers to a secret meeting in Kuala Lumpur, Malaysia. They later flew on to the United States and settled in San Diego, where one of them, Khalid al-Mihdhar, made repeated calls to the Yemen operational center at the same time it was under NSA’s “cast iron” surveillance.

Hayden never discusses those phone calls, let alone why the agency never followed up on the fact that potential terrorists were calling the bin Laden operations center from phones in San Diego. But others have, among them J. Kirk Wiebe, a former senior analyst who worked at the NSA for 32 years, until October 2001. “You know the phone numbers involved, who’s making the phone call, and who it’s going to because the billing system has to have that metadata to charge you,” he told me last year. “They’re trying to cover up the failure of the NSA…and I think they’re embarrassed by that.” All it would have taken was a call to the FBI and a warrant from the Foreign Intelligence Surveillance Court to begin unraveling the plot. But with Hayden wanting to keep as far from the edge as possible, the agency let the terrorists slip through their earphones.

It takes a special kind of military officer to follow-up the worst intelligence failure since Pearl Harbor with possibly the worse intelligence blunder of all time. But Hayden was up to the challenge. Despite having the largest intelligence organization in the history of the world under his command, and billions upon billions of dollars in post-9/11 budget increases, Hayden gave assurances to the White House that Saddam Hussein was hiding stockpiles of weapons of mass destruction.

“I was in George Tenet’s conference room when we voted on the now-infamous National Intelligence Estimate (NIE),” he writes. “I voted yes—on all counts. I was comfortable with the vote, then. I had earlier told Condi Rice, the national security advisor, in a private conversation, that I had a roomful of evidence that Saddam had a WMD program. ‘A roomful of evidence,’ I confided, ‘all of it circumstantial.’” He added, “We compounded our error by stating our conclusions in the NIE in language that was far too categorical. No reader of the final product could conclude other than that we were firm in our judgments, despite some thin sourcing of our human intelligence and signals intelligence that (as noted) was circumstantial, at best.” Like most Bush administration officials, Hayden never apologizes in the book for the monumental error that ended up costing the lives of thousands of Americans, over 100,000 Iraqis, and opened the door for the emergence of ISIS. He simply adds, as if speaking of a lost baseball game, “We just got it wrong. It was a clean swing and a miss.”

* * *

Not satisfied with the two largest intelligence failures in US history, Hayden, going for a trifecta, proceeded to take the NSA back to the days of Nixon and Watergate by ordering his staff to bypass the FISA court and begin conducting illegal eavesdropping on millions of Americans under the program codenamed Stellarwind. It began with a call from George Tenet who asked if Hayden could “do anything more” with regard to eavesdropping. “Not within my current authority,” he said, indicating that anything more would be outside the law. “That’s not the question I asked,” Tenet shot back, clearly implying that he was not concerned with the issue of legality. Hayden then shifted from playing far from the edge to leaping over it, suggesting a potentially illegal program of warrantless eavesdropping that bypassed the FISA court.

The White House approved the idea, but David Addington, Vice President Dick Cheney’s lawyer and the person running the cabal, refused to share the legal opinion supposedly justifying the program with the NSA’s general counsel, Bob Deitz. It had been written by the Justice Department’s John Yoo and, in Addington’s thinking, it was far too sensitive to share with the agency that was about to carry out the operation. At that point, Hayden should have demanded that Addington share the legal justification with Deitz or resign. Instead, like a Mafia don, he simply asked Deitz, whom he called his “consigliere,” to find a way over, under, or around the law. Deitz suggested to Hayden that the FISA statute was unconstitutional. “There must be an implicit exception to FISA in an emergency or, to that extent, the statute was unconstitutional,” he concluded. Although Deitz had apparently never read the statute, the crafters of the legislation did insert an emergency exemption noting that a president may authorize warrantless surveillance at the beginning of a war, but only “for a period not to exceed 15 calendar days following a declaration of war by Congress.”

In the end, the program was a bust. As Hayden notes, “‘Anonymous sources’ at the bureau [FBI] later criticized NSA for sending them on what they derisively called ‘pizza runs,’ and I suppose we were. But we didn’t intend these tips to be definitive, just data that could be mixed with other information in the service of analysis. That was our mistake.” Then the program ran into trouble when incoming Deputy Attorney General James Comey was briefed on it. “Comey was a tough audience,” Hayden wrote. “He thought that this was the most aggressive assertion of presidential power in history (really?) and dismissed John Yoo’s legal opinion out of hand.”

The real blow, and the real test for Hayden, came when Comey—then the acting attorney general, while John Ashcroft was in the hospital—refused to allow Stellarwind to continue. The panicked White House was determined to keep the program going even though it was declared illegal by the Justice Department’s Office of Legal Counsel. So, instead of gaining the approval of the acting attorney general, Addington simply had the White House general counsel, a person with no legal authority, sign the document. The question then was whether Hayden would agree to such a fraudulent act.

“I was asked Friday morning point-blank by the White House (in the person of Addington),” he writes, “whether I would agree to carry out the Stellarwind program if the White House counsel rather than the acting attorney general averred to its overall lawfulness. After a short reflection, I said, ‘Yes, I would’….I didn’t regret the decision then and I don’t regret it now.” If he had not already done so before, at that moment Hayden certainly went over the edge. He ordered his agency to begin eavesdropping on thousands of US citizens without the authority of either the Justice Department, which considered it illegal, or the FISA Court. Passed in the wake of Watergate and years of illegal NSA eavesdropping, the FISA Act provided stiff criminal penalties for violating its strictures, including five years in prison for each violation—and each person targeted could be considered a separate violation. But unlike with Edward Snowden some years later, there were no calls for prosecution.

* * *

At the same time Hayden’s NSA was secretly targeting Americans, he was also developing new and enormously invasive ways to vacuum up private data. For decades, the rule was that the CIA would go after “information at rest,” through activities such as stealing documents, while the NSA focused on “information in motion,” which refers to communications and other signals. But when both agencies began seeing the enormous intelligence potential of penetrating databases, there began an epic battle over who had jurisdiction. “To NSA it was electronic and hence fair game. To CIA it wasn’t moving and hence was equally fair game,” writes Hayden. “President Bush settled it in a memorandum after 9/11 declaring it fair game for both agencies, with NSA treating it in accordance with SIGINT [signal intelligence] rules and CIA handling it like HUMINT [human intelligence].”

For the NSA, targeting databases opened up a whole new universe of hidden information. “We were moving to active SIGINT, commuting to the target and extracting information from it, rather than hoping for a transmission we could intercept in traditional passive SIGINT,” says Hayden. “We also knew that if we did this even half well, it would be the golden age of signals intelligence, since mankind was storing and moving more and more data in digital form with each passing day…. With little debate, we went from a world of letting radio waves serendipitously hit our antennas to what became a digital form of breaking and entering.”

The ability to remotely penetrate computers and databases anywhere in the world came with another possibility: not just stealing data, known as computer network exploitation, but secretly inserting malware to manipulate or destroy anything connected to the network, called a computer network attack. Soon the NSA unit responsible for this new revolution, the Tailored Access Operations, was booming. “TAO became the fastest-growing part of NSA,” notes Hayden. “One veteran confided to me that they had a ‘no target impossible to penetrate’ mentality and, from the beginning, bypassed low-hanging fruit to attack the hardest targets. Some of these took years to penetrate.” For others, said Hayden, it was very easy, “like tempting targets to click on a link in an innocent-looking email.” He added, “At home we were all complaining about the emergence of spam on our networks. At work, we willingly hid in the growing global flow as we targeted specific networks.”

One of those networks was in Iran’s Natanz uranium enrichment plant, and destroying the plant’s centrifuges, used to produce the enriched uranium, became a high-priority target for both the United States and Israel. Although Hayden discusses the operation only obliquely because it has never been declassified, he was certainly one of the key players in the development of the cyber weapon, known as Stuxnet, used to secretly attack the machines. He was the director of the NSA during the time the agency developed the exploitation malware used to spy on the plant’s computer network, and he was later director of the CIA at the time it developed the cyber “warhead” that eventually destroyed the system.

Overall, however, it was yet another intelligence failure. Intelligence officials had assured the White House that Stuxnet was designed so that the virus would never escape the plant, and that Iran—if they did discover the malware—would never be able to determine who planted it. The cyber weapon did destroy about a thousand centrifuges, but they were quickly replaced and only set their operation back six months to a year. The virus did escape and infected thousands of other computers around the world. And within a few months, cyber security experts in Germany and elsewhere identified both the United States as the creator and the centrifuges at Natanz as the target.

As Hayden notes, with Stuxnet—the world’s first cyber-weapon—the world had changed. “Someone had just used a weapon composed of ones and zeros, during a time of peace, to destroy what another nation could only describe as critical infrastructure,” he wrote. “It felt to me a little bit like August 1945. Mankind had unsheathed a new kind of weapon. Someone had crossed the Rubicon. A legion was now permanently on the other side of the river. We were in a new military age.” Hayden saw it as a personal triumph. “For someone of my background, that was almost an unalloyed good,” he wrote.

* * *

For nearly a decade, Hayden had served in the highest positions within the intelligence community, rewarded with a promotion after each successive failure. By the time he took over the CIA in May 2006, President Bush had already ordered an end to many of the harsh interrogation methods used against captured terrorism suspects, including waterboarding, much to Hayden’s apparent dismay. “In a Fox News interview,” he writes, “I said, ‘The facts of the case are that the use of these techniques against these terrorists made us safer. It really did work.’”

But by 2008, with the election of Barack Obama as president, Hayden’s days of reading secrets and directing covert operations were coming to a rapid end. Within the agency, many were worried about being prosecuted for their involvement in programs such as waterboarding, identified unequivocally as torture by the incoming attorney general, and the destruction of videotapes of the process.

“There were some at CIA who viewed the upcoming election with great concern, fearful that a new president would try to prosecute CIA officers involved in renditions, detentions, and interrogations,” recalls Hayden. “Indeed, both candidates had expressed strong negative views on the programs, and Eric Holder had specifically promised a reckoning while campaigning for Senator Obama. I was approached by a senior CIA lawyer with a package recommending a preemptive presidential pardon for everyone involved. To be clear, he was in no way imputing guilt to his fellow officers. He just feared politically motivated investigations and litigation that would disrupt lives and destroy savings. Given what Holder did once he was in office, he was damn prescient.”

Actually, rather than examining the mistakes through comprehensive investigations, holding those responsible to account, and signaling to the world that abuses such as torture would not be tolerated, Obama decided to simply look the other way and move on.

Looking back, “it was a hell of a ride,” writes Hayden. But he also notes the inherent contradiction that is the nature of the intelligence profession. “The agency requires only two things to be successful. We need to be powerful and we need to be secretive. And we live in a political culture that distrusts only two things. Power and secrecy, of course.”

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Katrina vanden Heuvel
Editorial Director and Publisher, The Nation

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